Hello, I am lawyer with a PSA: almost everyone is wrong about the OGL and SRD. Clearing up confusion.

[pemerton]

So if I am reading this correctly that if I was to offer you (S'mon) perpetual terms but among those terms was a termination clause. The court held that the termination clause still applies?

I haven't read the case, only the headnote that @S'mon posted.

But I think a basic principle is that each provision of the instrument will be interpreted so as to ensure that the whole thing is coherent.

So imagine a 3-clause licence:

1. I grant you a perpetual licence to use [my specified IP in certain specified ways].

2. The use permitted by section 1 is subject to [various conditions].

3. This licence will terminate in 7 days if any of the conditions set out in section 2 is breached, unless I give express notice to you within 7 days of such breach that the licence is to remain on foot despite the breach.​

It's clear that "perpetual" in this licence doesn't mean "irrevocable", because clause 3 sets out circumstances in which the licence can be revoked (namely, if you breach and I don't give you notice that the licence is to remain on foot).

Whether section 3 of my hypothetical licence sets out the only conditions in which revocation is possible is a further matter of construction. Without more context, I don't think it's possible to say.

Also @pemerton what is the key case in an Australian jurisdiction that references the need to include the use of irrevocable in the license to achieve the goals of the licenses like the GPL and OGL?

I don't know. I'm not an expert in Australian copyright licensing law. I will go so far as to say the situation is likely to be similar to the UK, meaning that there probably is no such requirement, but everything else being equal its better to be express than to rely on context.

 

[jgbrowning]

Hence anyone can distribute any 1.0a content as long as they use an authorized lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.

I'd add the caveat, excepting when the 1.1 released OGC is exactly the same as the 1.0 released OGC, which I suspect a lot of it going to be if things are supposed to be as powerfully backwards compatible as insinuated.

 

[S'mon]

Appreciate you digging into this.

So if I am reading this correctly that if I was to offer you (S'mon) perpetual terms but among those terms was a termination clause. The court held that the termination clause still applies?

Thanks Rob. Yes, the termination clause over rides any interpretation that Perpetual means Irrevocable. In the OGL likewise, the termination for breach clause would override the interpretation that Perpetual means Irrevocable in that specific instance.

 

[Enrahim2]

I'd add the caveat, excepting when the 1.1 released OGC is exactly the same as the 1.0 released OGC, which I suspect a lot of it going to be if things are supposed to be as powerfully backwards compatible as insinuated.

Well, if 1.0 a is not revoked, but rather just not considered "authorised" in the section 9 sense, then that caveat wouldn't really be needed? The exact content is already available under 1.0a, and hence usable per section 4.

 

[robconley]

Whether section 3 of my hypothetical licence sets out the only conditions in which revocation is possible is a further matter of construction. Without more context, I don't think it's possible to say.

And what supplies that context if it is something else other than what the terms of the license says.

So in software, when creating something that is called a subclass, it means that certain features and functionality are inherited from a parent class. As far as contracts goes, if I include an explicit termination clause is there some feature or functionality that the contract can "inherit" that can also affect termination under current jurisprudence? Assuming that the termination clause itself is judged fair and equitable. Or does the termination clause always take precedence as the UK case seems to hold?

 

[robconley]

Thanks Rob. Yes, the termination clause over rides any interpretation that Perpetual means Irrevocable. In the OGL likewise, the termination for breach clause would override the interpretation that Perpetual means Irrevocable in that specific instance.

Thanks and again appreciate you digging this up.
Another question, do you think there is a distinction between deauthorization and termination? Or as in some cases, they are just two ways of saying the same thing. In this case, the license has been terminated?

If so wouldn't the explicit Termination Clause in Section 13 override the implicit consequences of deauthorization? Just as the UK court held, that a explicit Termination Clause overridden the Perpetual license grant?

 

[S'mon]

And what supplies that context if it is something else other than what the terms of the license says.

So in software, when creating something that is called a subclass, it means that certain features and functionality are inherited from a parent class. As far as contracts goes, if I include an explicit termination clause is there some feature or functionality that current jurisprudence has the contract "inherit" that can also affect termination? Assuming that the termination clause itself is judged fair and equitable. Or does the termination clause always take precedence as the UK case seems to hold?

In English law the validity of a clause in strict Contract law is unaffected by whether it's fair & equitable, except in Consumer contracts and exclusion clauses. Neither applies here.

The termination clause is read in context with the rest of the document. Typically specific terms tends to beat more general terms, eg imagine a contract that says:

"1. This contract is perpetual and irrevocable.
2. Notwithstanding 1, this contract may be terminated for breach of term X."

The court will normally still allow termination for breach of term X under clause 2, despite the wording of clause 1.

 

[pemerton]

Sorry my mistake, correct formulation is "no longer authorized" as you say. By the way, this source give a bit more context to that statement tha the Gizmodo quote more clearly showing that the language us used in the explicit context of stating that 1.1 is an "update to the previously available OGL 1.0(a)" This context is missing from the Gizmodo quote, hence making the likely association with the section 9 update wording less clear.

I don't believe that is the wording of the draft licence (which Gizmodo says is 9,000 words, or well into double digit pages). I think its a gloss or summary, for explanation of the proposal.

I think this is what you get upside down. Section 9 is asymmeticly stated, but not in terms of "future" and "past", but rather in terms of "any authorized" and plain "any". Even if revoking the "authorized" status of 1.0a (limited to only this meaning and use of the term), it could still be considered a version of this lisence per section 9.

I don't know what the bolded "it" refers to.

There is no doubt that OGL v 1.0a counts as an authorised version of the licence for the purposes of section 9 of itself. If WotC want to stop publishers participating in both the old and new ecosystems they will need an express "poison pill" provision similar to the one in an early iteration of the GSL.

The question I was posting about is whether OGL v 1.0a will be an authorised version for the purposes of OGL v 1.1's section 9 equivalent., and whether OGL v 1.1 will be an authorised version for the purposes of section 9 of the OGL v 1.0a. And for the reasons I gave, I very much doubt that either will be. The structure of a viral open licence means the two ecosystems need to be kept distinct if the royalty scheme is going to work. Because if they're not kept distinct, then every existing licensee will be able to use new content under v 1.0a which grants them a royalty-free licence. And this is exactly what WotC is trying to change!

Hence anyone can distribute any 1.0a content as long as they use an authorized lisence for doing so, but you could not publish 1.1 lisenced material under 1.0a as using 1.1 content as source would require you to accept that 1.0a cannot be described as "authorized", and hence you cannot claim section 9 allow you to use the 1.1 material.

The only way I can see to enable existing OGC to be licensed via new v 1.1 would be for v 1.1 to create rights in respect of OGC. But at that point it would be an authorised version of OGL v 1.0/1.0a within the meaning of their section 9, which would mean existing licensees could publish new content under the old licence.

You suggest that "using 1.1 content as source would require you to accept that 1.0a cannot be described as 'authorised'", but don't explain how that is going to work. I have said how I think it will work: there will be Licensed Content, governed by 1.1; and OGC, governed by 1.0/1.0a. And they are separate categories of content. I don't see how v 1.1 could both mingle them and keep them separate in the way you seem to be suggesting.

 

[S'mon]

Thanks and again appreciate you digging this up.
Another question, do you think there is a distinction between deauthorization and termination? Or as in some cases, they are just two ways of saying the same thing. In this case, the license has been terminated?

If so wouldn't the explicit Termination Clause in Section 13 override the implicit consequences of deauthorization? Just as the UK court held, that a explicit Termination Clause overridden the Perpetual license grant?

As Pemerton has said,' deauthorise' isn't a legal term & doesn't have a clear legal meaning, whereas terminate does. I can't really answer this as it's a bit technical & the kind of thing the case would hinge on.

 

[Burt Baccara]

an authorised version is a licence produced by WotC or its agents.

The draft was a license produced by WotC or its agents. Draft v. authorized seems like the language used to indicate which licenses are available for use and which were released for other purposes, such as discussion. This is of course based on the license being open.

Again, laymen here and basing the above on the specific language choices on v.2 and v1